Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

6
Whose Federal Judiciary Is It Anyway?

STEPHEN REINHARDT Judge, United States Court of Appeals, Ninth Circuit

A major battle is under way over the future of the federal judiciary. So far it has been waged behind closed doors. Soon it will move into the open. Its outcome will affect all young lawyers and, more important, all Americans with legal problems, civil and criminal.

The struggle is over the heart and soul of our federal judicial system. Whose courts are they? What is the purpose of federal courts? Are they there to serve the judges or the people? All the people or just the few? The battle is taking place in the form of a struggle over the size of the federal courts. Will they grow so that they can serve the needs of an expanding population with expanding rights, or will they be frozen in size and the number of judges capped at the number now serving? If those favoring a freeze on the number of judges prevail, the end result will be a drastic limitation on the number of cases that can be litigated in the federal courts.

We hear much about the problem of increasing delay in our federal courts. We hear complaints that litigants are frequently denied oral argument, that the size of briefs is being limited unreasonably, that written opinions are being replaced by inadequate informal memorandum dispositions. All these charges are true, all these complaints are justified, and all result from a single cause. We do not have enough federal judges to do all the work that is necessary to provide first-class justice to all.

The solution is simple. There are only 170 federal appellate court judges in a country of 240 million people. Yet, except for the 100-odd cases a year the Supreme Court hears, courts of appeals are the courts of last resort in all federal cases. Why only 170 judges, sitting in panels of three--meaning only roughly fifty-five panels--to hear all the federal appeals affecting two to three hundred million people? No reason at all. But the opposition to growth is fierce--and stems from an odd mixture of motives.

Let me first give you a practical example of the consequence of the

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